Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

On top of a presidential election, <a href="http://abcnews.go.com/Technology/instagate-instagram-claims-display-users-photos-ads-users/story?id=18006012#.UOOqwbshQ3Q">protests</a> over Instagram’s terms of use, and the invention of gloves that can translate sign language, 2012 also brought to light interesting constitutional issues involving public entities’ use of social media when a citizens’ group <a href="http://www.legaltxts.com/wp-content/uploads/2012/08/HDf.pdf">filed suit</a> against the City and County of Honolulu for “violations of [the group’s] freedoms of speech” based on the Honolulu Police Department’s removal of several postings by the group from the Department’s official Facebook page.The background behind the lawsuit is seemingly innocuous. Like the <a href="http://www.facebook.com/WhiteHouse?fref=ts">White House</a>, the <a href="http://www.facebook.com/nycgov?fref=ts">City of New York</a>, and <a href="http://www.facebook.com/LARECYCLES?fref=ts">other governmental entities</a>, the Honolulu Police Department (“HPD”) has an <a href="http://www.facebook.com/honolulu.police?fref=ts">official Facebook page</a>. The HPD uses its Facebook page to provide the citizens of Honolulu with everything from crime reports to information on public parking, and Facebook users are able to comment on its various posts. For a period of time, HPD also allowed Facebook members to post on its “wall.” (HPD no longer allows wall posts, but retains a “recommendations box” on its page where users can make comments.) Starting in the beginning of 2012, several members of the <a href="http://www.hawaiidefensefoundation.org/">Hawaii Defense Foundation</a> (the “Foundation”), a non-profit organization dedicated to training citizens to use handguns and informing Hawaiians of their rights regarding firearms, began posting comments, articles, and photographs on the HPD Facebook page’s wall, criticizing the HPD on issues ranging from restrictions on issuing concealed weapons permits to alleged corruption. The administrators of the HPD Facebook page took the same actions that administrators of other Facebook pages commonly take, deleting the offensive posts and blocking the posters, both of which are easily done using Facebook’s interface.Although individuals and private companies take these actions every day on their Facebook pages, the Foundation pointed out that the HPD Facebook page was a self-proclaimed “forum open to the public” created and administered by a government entity. Facebook describes the HPD and other such bodies as “Government Organizations,” although this label is applied merely for categorization purposes and does not purport to carry any legal weight. Nonetheless, the Foundation labeled the administrators of the page as “agents” of the city of Honolulu, and argued that their actions were subject to scrutiny under the First and Fourteenth Amendments. In its complaint, the Foundation cited <a href="http://www.law.cornell.edu/supct/html/94-329.ZS.html">Rosenberger v. Rector and Visitors of the University of Virginia</a>, a case in which a university’s fund for student activities was considered a “limited public forum” for First Amendment purposes, to demonstrate that “a forum need not be a physical place.” The Foundation also claimed that the HPD violated its Fourteenth Amendment rights by removing the posts and banning the group’s members in violation of the Foundation members’ due process rights.Although the Foundation’s suit against the HPD is the first First Amendment suit of its kind, depending on its outcome, other private groups may soon file similar complaints against “Government Organizations” on Facebook that take a similarly aggressive approach to administering their Facebook pages. In fact, a former police officer in the small village of Island Lake, Illinois recently requested review from the Illinois Attorney General’s office when his comments on Island Lake’s Facebook page were deleted by the page’s administrators. The Illinois Attorney General issued an opinion in which it found that Island Lake’s actions did not violate the Illinois Open Meetings Act, but the opinion did not address the First Amendment issues.The Foundation’s suit against the HPD and other complaints against administrators of Facebook pages that act as “public forums” raise policy issues that did not exist in the pre-social media era. Unlike more conventional forms of criticizing the government, such as holding up physical signs in front of city, state or federal buildings, using Facebook as a vehicle for dissent can be done from the privacy of one’s own home and allows the complaining individual to make his or her opinions instantly known to the entire Internet-equipped world. Governmental entities are not required to have Facebook pages, but often establish such pages as a simple and efficient way of conveying information to citizens. If these entities are to face constant constitutional scrutiny based on their means of administering their Facebook pages, they may be reluctant to maintain a social media presence. The White House Facebook Page endures an endless onslaught of criticism in the form of comments on its posts (although it does not allow users to post on its wall), while, on the other hand, it appears that the <a href="http://www.facebook.com/pages/Island-Lake-Illinois/106087942754833?fref=ts">Island Lake Facebook page</a> has been shut down for the most part. In light of the HPD and Island Lake complaints, one <a href="http://www.jdsupra.com/legalnews/public-entity-deletes-comments-from-face-46395/">legal commentator advises public schools</a> whose Facebook pages may be visited by disgruntled students to “consult with legal counsel before deleting comments from social media webpages to address the constitutionality of that action.” Regardless of the outcome of the HPD suit, the fact that the complaint exists in the first place reinforces the notion that social media is the new battleground for all aspects of the law, from intellectual property to criminal law, and now to the frontier of constitutionality.

kaufman_jessica_blog_150x150.png

kaufman_jessica_common_640x280.jpg

kaufman_jessica_heroretina_2700x1160.jpg

kaufman_jessica_mobileretina_750x1040.jpg

kaufman_jessica_social_600x600.jpg

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

istock_000020710561large-1024x682.jpg

Facebook ’em, Danno: Federal Court May Decide Whether Citizens Have First Amendment Right to Use Social Media to Publicly Criticize the Hawaii 5-0

Facebook ’em, Danno: Federal Court May Decide Whether Citizens Have First Amendment Right to Use Social Media to Publicly Criticize the Hawaii 5-0

On top of a presidential election, protests over Instagram’s terms of use, and the invention of gloves that can translate sign language, 2012 also brought to li

The Federal Trade Commission (FTC) has cracked down on a company that was engaged in “history sniffing,” a means of online tracking that digs up information embedded in web browsers to reveal the websites that users have visited. In a <a href="http://www.ftc.gov/os/caselist/1123182/121205epicorder.pdf">proposed settlement</a> with Epic Marketplace, Inc. and Epic Media Group (together, “EMG”) announced on December 5, 2012, the FTC settled charges that EMG had improperly used history sniffing to collect sensitive information regarding unsuspecting consumers.EMG functions as an intermediary between publishers—i.e., websites that publish ads—and the advertisers who want to place their ads on those websites. It does this through online behavioral advertising, which typically entails placing cookies on websites a consumer visits in order to collect information about his or her use of the website and then using that information to serve targeted ads to the user when he or she visits other websites within the EMG Marketplace Network.What got EMG into trouble was that it also used history sniffing to collect information regarding the websites that users visited. Here’s how the technique works. In your web browser, hyperlinks to websites change color once you have visited them. After you have visited a webpage, the hyperlink to it will most likely appear in one color (e.g., purple). If you haven’t been to a particular webpage before, any link to it will probably show up in another color (e.g., blue). History sniffing code exploits this feature to go through your browser—that is, to “sniff” around—to see what color your hyperlinks are. When the code finds purple links, it knows that you’ve been to those websites.<a href="http://www.ftc.gov/os/caselist/1123182/121205epiccmpt.pdf">According to the FTC</a>, for almost 18 months—from March 2010 until August 2011—EMG included history sniffing code in ads it served to website visitors on at least 24,000 webpages within its network, including webpages associated with name brand websites. EMG used the code to determine whether consumers had visited more than 54,000 different domains, including websites “relating to fertility issues, impotence, menopause, incontinence, disability insurance, credit repair, debt relief, and personal bankruptcy.” EMG used this sensitive information to sort consumers into “interest segments” that, in turn, included sensitive categories like “Incontinence,” “Arthritis,” “Memory Improvement,” and “Pregnancy-Fertility Getting Pregnant.” EMG then used the sensitive interest segments to deliver targeted ads to consumers.History sniffing is not per se illegal under U.S. law. What got EMG in trouble was that it allegedly misrepresented how it tracked consumers. First, EMG’s privacy policy at the time stated that the company only collected information about visits to websites within the EMG network; however, the FTC alleged that the history sniffing code enabled EMG to “determine whether consumers had visited webpages that were outside the [EMG] Marketplace Network, information it would not otherwise have been able to obtain.” EMG’s tracking of users in a manner inconsistent with its privacy policy was therefore allegedly deceptive, in violation of Section 5 of the FTC Act.Second, EMG’s privacy policy did not disclose that the company was engaged in history sniffing; it disclosed only that it “receives and records anonymous information that your browser sends whenever you visit a website which is part of the [EMG] Marketplace Network.” According to the FTC, the fact that the company engaged in history sniffing would have been material to consumers in deciding whether to use EMG’s opt-out mechanism. EMG’s failure to disclose the practice was therefore also allegedly deceptive in violation of Section 5 of the FTC Act.The proposed consent order would, among other things, require EMG to destroy all the information that it collected using history sniffing, bar it from collecting any data through history sniffing, prohibit it from using or disclosing any information that was collected through history sniffing, and bar misrepresentations regarding how the company collects and uses data from consumers or about its use of history sniffing code.EMG stopped its history sniffing in August 2011, and most new versions of web browsers have technology that blocks this practice. Nonetheless, the FTC <a href="http://www.ftc.gov/os/caselist/1123182/121205epiccmpt.pdf">made it clear in the complaint</a> that it wanted to highlight the problem because history sniffing “circumvents the most common and widely known method consumers use to prevent online tracking: deleting cookies.” Mark Eichorn, assistant director of the FTC’s Division of Privacy and Identity Protection, told the Los Angeles Times that the FTC “really wanted to make a statement with this case.” He added, “People, I think, really didn’t know that this was going on and didn’t have any reason to know.” The proposed consent order puts online tracking and advertising companies on notice: If you collect data in a manner inconsistent with—or not disclosed in—your privacy policy, you run the risk of a charge of deception.

oneill_julie_blog_150x150.png

oneill_julie_common_640x280.jpg

oneill_julie_heroretina_2700x1160.jpg

oneill_julie_mobileretina_750x1040.jpg

oneill_julie_social_600x600.jpg

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

bigstock-abstract-keyboard-ball-24050429-1024x778.jpg

FTC Snuffs Out Online “History Sniffing”

FTC Snuffs Out Online “History Sniffing”

The Federal Trade Commission (FTC) has cracked down on a company that was engaged in “history sniffing,” a means of online tracking that digs up information emb

In a string of cases against Google, approximately 20 separate plaintiffs have claimed that, through advertisements on its AdWords service, Google engaged in trademark infringement. These claims have been based on Google allowing its advertisers to use their competitors’ trademarks in Google-generated online advertisements. In a recent decision emerging from these cases, CYBERsitter v. Google, the U.S. District Court for the Central District of California found that Section 230 of the Communications Decency Act (CDA) provides protection for Google against some of the plaintiff’s state law claims.As we have discussed previously (see here and here), Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Section 230 safe harbor immunizes websites from liability for content created by users, as long as the website did not “materially contribute” to the development or creation of the content. An important limitation on this safe harbor, however, is that it shall not “be construed to limit or expand any law pertaining to intellectual property.”In the CYBERsitter case, plaintiff CYBERsitter, which sells an Internet content-filtering program, sued Google for selling and displaying advertisements incorporating the CYBERsitter trademark to ContentWatch, one of CYBERsitter’s competitors. CYBERsitter’s complaint alleged that Google had violated numerous federal and California laws by, first, selling the right to use CYBERsitter’s trademark to ContentWatch and, second, permitting and encouraging ContentWatch to use the CYBERsitter mark in Google’s AdWords advertising. Specifically, CYBERsitter’s complaint included the following claims: Trademark infringement, contributory trademark infringement, false advertising, unfair competition and unjust enrichment.Google filed a motion to dismiss, arguing that Section 230 of the CDA shielded it from liability for CYBERsitter’s state law claims. The court agreed with Google for the state law claims of trademark infringement, contributory trademark infringement, unfair competition and unjust enrichment, but only to the extent that these claims sought to hold Google liable for the infringing content of the advertisements. The court, however, did not discuss the apparent inapplicability of the Section 230 safe harbor to trademark claims. As noted above, Section 230 does not apply to intellectual property claims and, despite the fact that trademarks are a form of intellectual property, the court applied Section 230 without further note. This is because the Ninth Circuit has held that the term “intellectual property” in Section 230 of the CDA refers to federal intellectual property law and therefore state intellectual property law claims are not excluded from the safe harbor. The Ninth Circuit, however, appears to be an outlier with this interpretation; decisions from other circuit courts suggest disagreement with the Ninth Circuit’s approach, and district courts outside the Ninth Circuit have not followed the Ninth Circuit’s lead.Google was not let off the hook entirely with regard to the plaintiff’s state trademark law claims. In dismissing the trademark infringement and contributory trademark infringement claims, the court distinguished between Google’s liability for the content of the advertisements and its liability for its potentially tortious conduct unrelated to the content of the advertisements. The court refused to dismiss these claims to the extent they sought to hold Google liable for selling to third parties the right to use CYBERsitter’s trademark, and for encouraging and facilitating third parties to use CYBERsitter’s trademark, without CYBERsitter’s authorization. Because such action by Google has nothing to do with the online content of the advertisements, the court held that Section 230 is inapplicable.The court also found that CYBERsitter’s false advertising claim was not barred by Section 230 because Google may have “materially contributed” to the content of the advertisements and, therefore, under Section 230 would have been an “information content provider” and not immune from liability. Prof. Eric Goldman, who blogs frequently on CDA-related matters, has pointed out an apparent inconsistency in the CYBERsitter court’s reasoning, noting that Google did not materially contribute to the content of the advertisements for the purposes of the trademark infringement, contributory infringement, unfair competition and unjust enrichment claims, but that Google might have done so for the purposes of the false advertising claim.CYBERsitter highlights at least two key points for website operators, bloggers, and other providers of interactive computer services. First, at least in the Ninth Circuit, but not necessarily in other circuits, the Section 230 safe harbor provides protection from state intellectual property law claims with regard to user-generated content. Second, to be protected under the Section 230 safe harbor, the service provider must not have created the content and it must not have materially contributed to such content’s creation.

istock_000017192027illustra-1024x1024.jpg

Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor

Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor

In a string of cases against Google, approximately 20 separate plaintiffs have claimed that, through advertisements on its AdWords service, Google engaged in tr

Waves of class actions have recently alleged that the delivery of an opt-out confirmation text message violates the Telephone Consumer Protection Act (TCPA). Thus, a Federal Communications Commission (“Commission”) Declaratory Ruling finding that a single opt-out confirmation text does not violate the TCPA comes at a crucial time. The Commission’s decision, issued on November 29, 2012, is a welcome relief to companies facing these cases.The TCPA generally permits the delivery of text messages to consumers after receiving prior express consent to do so. Numerous plaintiffs have taken the position that an opt-out confirmation message violates the TCPA because it is delivered after consent has been revoked. In its ruling, however, the Commission found that a consumer’s prior express consent to receive a text message can be reasonably construed to include consent to receive a final, one-time message confirming that the consumer has revoked such consent. Specifically, delivery of an opt-out confirmation text message does not violate the TCPA provided that it: 1) merely confirms the consumer’s opt-out request and does not include any marketing or promotional information; and 2) is the only message sent to the consumer after receipt of his or her opt-out request. In addition, the Commission explained that if the opt-out confirmation text is sent within five minutes of receipt of the opt-out, it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, “the sender will have to make a showing that such delay was reasonable and the longer this delay, the more difficult it will be to demonstrate that such messages fall within the original prior consent.”The Commission’s ruling brings the TCPA into harmony with widely followed self-regulatory <a href="http://www.mmaglobal.com/bestpractice">guidelines</a> issued by the Mobile Marketing Association, which affirmatively recommend that a confirmation text be sent to the subscriber after receiving an opt-out request. The ruling also comes on the heels of, and is consistent with, at least two recent decisions in putative class action cases filed in the Southern District of California. In Ryabyshchuck v. Citibank (South Dakota) N.A., the court held that Citibank did not violate the TCPA by sending a text message confirming that it had received the customer’s opt-out request. The court went as far as to say that “common sense renders the [opt-out] text inactionable under the TCPA.” The court reasoned that the TCPA was intended to shield consumers from the proliferation of intrusive, nuisance communications, and “[s]uch simple, confirmatory responses to plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA.” Likewise, in <a href="http://www.scribd.com/doc/99354515/Ibey-v-Taco-Bell-12-CV-0583-HVG-S-D-Cal-June-18-2012">Ibey v. Taco Bell Corp.</a>, the court dismissed a lawsuit alleging that Taco Bell had violated the TCPA by sending an opt-out confirmation message. Noting that the TCPA was enacted to prevent unsolicited and mass communications, the court held, “[to] impose liability … for a single, confirmatory text message would contravene public policy and the spirit of the statute—prevention of unsolicited telemarketing in a bulk format.”The Commission’s ruling should bring an end to the rash of class actions brought in recent months challenging the legality of confirmatory opt-out messages.